A BILL to amend and reenact §44A-1-8 of the Code of West Virginia,
1931, as amended, relating to the eligibility of guardians or
conservators to be hired to provide care to a protected person
through employment with a behavioral health provider in
certain circumstances.

Be it enacted by the Legislature of West Virginia:

That §44A-1-8 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:

ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.

§44A-1-8. Persons and entities qualified to serve as guardian and
conservator; default guardian and conservator;
exemptions from conservator appointment.

(a) Any adult individual may be appointed to serve as a
guardian, a conservator or both upon a showing by the individual of
the necessary education, ability and background to perform the
duties of guardian or conservator and upon a determination by the
court that the individual is capable of providing an active and
suitable program of guardianship or conservatorship for the
protected person. The individual may not be employed by or
affiliated with any public agency, entity or facility that is
providing substantial services or financial assistance to the
protected person except as set forth in subsection (g) of this
section.

(b) The court may, after first determining it to be in the
best interest of the protected person, appoint coguardians,
coconservators or both.

(c) Any person being considered by a court for appointment as
a guardian or conservator shall provide information regarding any
crime, other than traffic offenses, of which he or she was
convicted and the court or mental hygiene commissioner may order a
background check to be conducted by the State Police or county
sheriff. The court shall consider this information in determining
the person’s fitness to be appointed a guardian or conservator.

(d) Any nonprofit corporation chartered in this state and
licensed as set forth in subsection (e) of this section or a public
agency that is not a provider of health care services to the
protected person may be appointed to serve as a guardian, a
conservator or both Provided, Thatso long as the entity is
capable of providing an active and suitable program of guardianship
or conservatorship for the protected person and is not otherwise
providing substantial services or financial assistance to the
protected person.

(e) A nonprofit corporation chartered in this state may be
appointed to serve as a guardian or conservator or as a limited or
temporary guardian or conservator for a protected person if it is
licensed to do so by the Secretary of Health and Human Resources.
The secretary shall propose legislative rules for promulgation in
accordance with the provisions of chapter twenty-nine-a of this
code, for the licensure of nonprofit corporations and shall provide
for the review of the licenses. The rules shall, at a minimum,
establish standards to assure that any corporation licensed for
guardianship or conservatorship:

(1) Has sufficient fiscal and administrative resources to
perform the fiduciary duties and make the reports and accountings
required by this chapter;

(2) Will respect and maintain the dignity and privacy of the
protected person;

(3) Will protect and advocate the legal human rights of the
protected person;

(4) Will assure that the protected person is receiving
appropriate educational, vocational, residential and medical
services in the setting least restrictive of the individual's
personal liberty;

(5) Will encourage the protected person to participate to the
maximum extent of his or her abilities in all decisions affecting
him or her and to act in his or her own behalf on all matters in
which he or she is able to do so;

(6) Does not provide educational, vocational, residential or
medical services to the protected person; and

(7) Has written provisions in effect for the distribution of
assets and for the appointment of temporary guardians and
conservators for any protected persons it serves in the event the
corporation ceases to be licensed by the Department of Health and
Human Resources or otherwise becomes unable to serve as guardian.

(f) A duly licensed nonprofit corporation that has been
appointed to serve as a guardian or as a conservator pursuant to
the provisions of this article is entitled to compensation in
accordance with the provisions of section thirteen of this article.

(g) Except as provided in section thirteen of this article, no
guardian or conservator nor any officer, agent, director, servant
or employee of any guardian or conservator may do business with or
in any way profit, either directly or indirectly, from the estate
or income of any protected person for whom services are being
performed by the guardian or conservator except that a person who
seeks to be appointed a guardian or conservator for a family member
may be permitted by the court to be paid for the provision of
services to the protected person under a written contract or
employment arrangement with a licensed behavioral health provider
if the arrangement is disclosed in writing to the court making the
appointment of the guardian or conservator and only if the court
finds that it is in the best interest of the protected person that
such arrangement occur. If the appointment of the guardian or
conservator has occurred prior to the commencement of a contractual
arrangement for the provision of paid services to the protected
person by a family member or prior to the hiring of the family
member to provide services to the protected person, the court shall
be made aware of the proposed contract or hiring in writing and
shall approve or deny the arrangement prior to the commencement of
payment of services. Guardians or conservators who are employed by
or in a contractual relationship with a behavioral health provider
prior to the passage of this section are required only to inform
the court in writing of the employment and their employer.

(h) A person who has an interest as a creditor of a protected
person is not eligible for appointment as either a guardian or
conservator of the protected person except that a bank or trust
company authorized to exercise trust powers or to engage in trust
business in this state may be appointed as a conservator if the
court determines it is capable of providing suitable
conservatorship for the protected person.

(i) The Secretary of the Department of Health and Human
Resources shall designate the adult protective services division of
the county of appointment, or another agency under his or her
jurisdiction, to be appointed as guardian when there is no other
individual, nonprofit corporation or other public agency that is
equally or better qualified and willing to serve. The department
may not refuse to accept the guardianship appointment when ordered
by the court but may not be appointed as conservator.

(j) The sheriff of the county in which a court has
jurisdiction shall be appointed as conservator when there is no
other individual, nonprofit corporation or other public agency that
is equally or better qualified and willing to serve. The sheriff
may not refuse to accept the conservatorship appointment when
ordered by the court but may not be appointed as guardian.

(k) A conservator shall not be appointed when the alleged
protected person’s total assets are worth less than $2,000 or the
alleged protected person’s income is:

(1) From the Social Security Administration and a
representative payee has been appointed to act in the best interest
of the individual;

(2) From Medicaid and the only income distributed to the
individual is the personal account allotment; or

(3) Less than $50 per month or $600 per year. In these
instances, the guardian, representative payee or health care
facility, if there is no other person or entity, shall manage the
personal care account or assets.

NOTE: The purpose of the bill is to allow a guardian or
conservator to be employed or in an employment contract with a
behavioral health provider to provide care to the protected person
under certain circumstances.

Strike throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.